Booking the Dumpster

• Author: Bryan A. Garner
• Pages: 26-27

26 || ABA JOURNAL MAY 2018

Booking the Dumpster

The tragedy of ‘deaccessioning’ books from university libraries

By Bryan A. Garner

Scenario No. 1: An a mbitious pre-

law student working on a senior thesis

about Shakespeare’s Love’s Labour’s

Lost goes to the librar y and discovers,

much to his surprise, t wo long aisles of

books about Shakespea re—some 6,500

books on just that subject. He spends

hour aft er hour combing through the

many tomes, c hecking the indexes a nd

then reading the relevant pa ssages.

Many scholars, he fi nds, have written

about Shakespeare’s “curious foppery

of language” (Walter Pater [1889]) in

the play, which is “truly a comedy on the

state of the English lang uage in 1588”

(William Mathew s [1964]). One scholar

(Friedrich Land mann), in an obscure

monograph from the early 1880s, defi ned the four types

of linguistic abuse found in t he play: excessive allitera-

tion, Petrarchan love-sonnet ing, euphuism (fancy synta x

and word choice) and perversely extreme Lati nity. Nearly

a century later, an A merican critic called the play “a

sustained inquir y into the nature and status of words;

and the charact ers in it embody, defi ne and implicitly

criticize cer tain concepts of words” (Ralph Berry [1969]).

Our prelaw student is off to a fr uitful start for his

senior thesis. His professor has sug gested that a true

scholar must research enough to k now what predeces-

sors have done. Gle aning these quotation s, and many

others as well, has ta ken our budding scholar some

100 hours of effort. A long the way, he has learned much

about Shakespearea n criticism, the means of traditional

book research, the method s of literary analysis, and t he

sheer vastness of scholarly work in the fi eld.

Meanwhile, his facu lty adviser insists that the the sis

center on the student’s own close reading of the play—not

on that of earlier scholars. A long the way, he can mention

what others have said either to dispute their c onclusions

or endorse them. The quotations must be incident al

to his own ana lysis; they can’t substitute for it. But he

shouldn’t try to writ e in ignorance of his precursors.

Scenario No. 2: A legal scholar work ing on an essay

about the doctrine of precedent mean s to steep herself

in the literature on the subject . She goes to the jurispru-

dence section of her copiously stocked law librar y and

spends days collecting snippet s from Francis Lieber (in

a posthumous edition of a book dated 1883), Timothy

Walker (1895), Clarence Morris (1938), John Salmond

(1947), W.J.V. Windeyer (1949), Burke Shartel (1951),

W.W. Buckland (1952), A.W.B. Simpson (1961), Max

Radin (1963) and Rupert Cross (1991).

She’s surprised because none of the

law review art icles she’s read in the

last several year s cite any of these

authorities. She traces ba ck some

aspects of the doc trine to William

Blackstone (1765), James Kent (1826)

and Joseph Stor y (1858).

That recitation of authorities

just skims the sur face of what she’s

uncovering. She’s surveying the fi eld

so she can trace the development of

precedent in common-law systems

before embarking on her bold new

theory. This t ime-consuming r esearch

will tell her how novel her theory is .

She’ll nee d a thorough grounding.

Many of her discoveries are serend ipitous. Working

from her library ca rrel, she browses stacks of books

to fi nd relevant essays in unlikely place s. She hadn’t

expected to fi nd pertinent in formation in a 1935 book

by Henri Lévy-Ull mann or in a 1914 book by Frederic

R. Coudert. Those w riters’ penetrating insights help

refi ne her thesis. She’s delighted with the copiousness

of her university librar y’s holdings.

Scenario No. 3: A Texas practitioner is briefi ng an

appeal for a woman claimi ng to be the common-law

wife of a man who has d ied in an industrial accident.

Of course, the thre e elements of common-law marri age

are well-known in the 10 juri sdictions that recognize

it: an agreement to be mar ried, cohabitation for some

period, and a “holding out” as s pouses to the community

at large. The fi rst two are easily e stablished here, so

everyth ing hinges on the holding-out element. Hence

our practitioner wants to k now what Texas courts h ave

held on the subject .

Westlaw searches mostly produce case s that merely

iterate the three elements of a common-law mar riage.

A colleague tells our pra ctitioner friend he ought to

look at Joseph W. McKnight’s annual surveys of family

law. Dubious, the practitioner fi nds a law library that

holds print copies of the SMU Law Revie w to discover

that each year f rom 1970 to 2016, McKnight authorita-

tively analyzed t he appellate decisions in Texas relating

to family law. Start ing with 2016, our friend goes back

year by year in the bound volumes, soon d iscovering that

McKnight began each ye arly update with discussions of

important holdings relating t o common-law marriages.

Much to the practitioner’s surprise, McK night calls

them “informal ma rriages” because “common-law

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